15 Johns. 226 | N.Y. Sup. Ct. | 1818
delivered the opinion of the court. The premises in question are a part of lot No. 8$, in the old township of Milton, and are claimed by the lessors of the plaintiff under a patent to Moses Minner, bearing date the 13th of September, 1790. The principal question in the case is, as to the identity of the soldier. The patent is prima facie evidence of the service, as a soldier, of the person mentioned in the patent; and where there appears to have been two persons of the same, or nearly the same name, in titfe service, it is, sometimes, difficult to identify the patentee. But in the case before us the only difficulty appears to arise from the name being spelled Mitnner, instead of Miner. It is evident that the soldier under whom the lessors claim wrote his name Miner; and if it had been shown that there had been in the army any man by the name of Minner, the patent would be deemed to have issued to him ; but nothing of that kind appearing, it must be considered a mere mis-spelling of the naipe, which cannot affect the identity of the person; nor is it such a difference in the spelling as to make it a distinct name. Besides, the defendant himself sets up a title derived from a soldier by the name of Moses Minor. The grantor in the deed under which he claims describes himself as the heir at law of Moses Minor, deceased, late a private in the first New-York regiment, mariner. And the evidence in the case is very strong to show that this is the same person under whom the lessors derive title. It appears by the testimony of his sister, that he left Stonington in Connecticut, in the year 1774, and went to sea. And she produced a letter from him to his mother, dated at New-York, in September, 1775, which men
The hearsay évidence offered and objected to, of Moses Miner being with the New- York troops, and of his being killed in the army, was admissible for the purpose of showing his death, and the place where he died, but would not, of itself, afford any evidence of his having served in the army ¿s a soldier entitled to bounty land.
, We do not perceive any objection to the admission of a sworn copy of the records of the town of Stonington, as evidence of the family of Moses Miner. But this was unnecessary proof; the fact was sufficiently established by his sister, Esther Miner. From her testimony it appears that the lessor of the plaintiffs and herself are the only surviving heirs of her brother Moses. They are, accordingly, entitled to recover two-thirds of the premises in question. The defendant claims under a deed from Ebenezer Minor, who calls himself the heir at law of Moses Minor, but there is no evidence of that fact, nor any thing showing who Ebenezer Minor is.
It was admitted on the trial, that if the plaintiff had a . right to recover, the defendant was entitled to compensation for his improvement. The plaintiff must, accordingly, have judgment for two-thirds of the premises in question, with' stay of execution until the improvements have been paid for, pursuant to the act in such case made and provided.
Judgment for the plaintiff.